T V KRISHNA IYER Vs. MOHAMMAD HUSSIAN

JUDGEMENT

(1.) THE 4th additional counter-petitioner appearing by the learned Advocate General is the appellant. THE appeal is from an order made by the learned District Judge of Nagercoil in O. P. No. 2 of 1124. THEre was a petition for the winding up of what is known as the Cape Comorin General traffic Company which was pending in the court of the learned District Judge. In the exercise of the extraordinary original jurisdiction of this Court, that petition was transferred to the file of this Court. It was heard before a single judge who dismissed it. On appeal, a Bench of two judges of this Court reversed the decision of the single judge and directed a compulsory winding up of the company, appointing an Advocate practising at Trivandrum as the Official liquidator and ordered the records of the case to be sent back to the Nagercoil district Court "which will supervise the work of liquidation". While the liquidation proceedings were pending in the court below, there was an application made on behalf of some of the share-holders of the company in liquidation for the reconstruction of the company. When this petition as taken up for disposal by the court below, an objection was raised on behalf of the appellant in this Court to jurisdiction of the Court to deal with that petition. THE contention urged was that the order for compulsory liquidation having been passed by the High Court, since the records were only transmitted to the District Court for supervising the winding up, an application for reconstruction of the company could not legally be maintained in the court of the District Judge. This argument was repelled by the order made by the court below on the 12th of July 1949. In that order the question of jurisdiction alone was dealt with and the matter was directed to be posted to a later date for considering the question as to whether the proposal for reconstruction could be accepted and whether a direction could be given that the matter should be placed before the share-holders for consideration. On the 20th of July 1949, after hearing arguments, the learned judge arrived at the conclusion that the proposals for a reconstruction were not acceptable inasmuch as there was a certain amount of vagueness about the proposed scheme and he, therefore disallowed the prayer in the petition for referring the scheme framed by some of the share-holders to a general meeting of the share-holders. It will thus be seen that although the question of law that was urged by the appellant here was not decided in his favour by the learned District Judge, the final order made by the judge dismissing the petition for considering a scheme for reconstruction is an order in favour of the appellant. THE appellant cannot, therefore, be regarded as an aggrieved person who is competent to file an appeal from the order to this Court. We need only refer to the provisions of s. 245 of the travancore Companies Act, IX of 1114. According to this section an appeal from an order or decision made in the matter of the winding up of a company is subject to the same conditions subject to which appeals may be filed from an order or decisions of the same court in cases within its ordinary jurisdiction. Provision for filing appeals from decision in its ordinary jurisdiction is to be found in S. 76 of the Travancore Civil Procedure Code which corresponds to S. 96 of the Indian Civil Procedure Code. From the facts narrated, it will be seen that the decision of the court below is in favour of the appellant although one of the findings of the court below is opposed to the contentions raised on behalf of the appellant. It is not permissible in the circumstances for the appellant to come up here on appeal from such an order, he being not a party adversely affected by the order.

(2.) THE appellant's apprehension seems to be that in view of the finding that the court below has jurisdiction to entertain applications for the reconstruction of the company, there may be complications arising in the shape of fresh applications for reconstruction. It is stated that there is already an application filed which has been numbered as O. P. No. 4 of 1124 which has been stayed by the court below on the application of the appellant. It is stated by the learned Advocate General appearing for the appellant, that these applications are part of a scheme for postponing the closing of the liquidation proceedings. THE company is acting under a lease for 50 years for working certain salt pans in the vicinity of Nagercoil. It is stated that only seven more years remain out of the period for which the lease is granted. THE complaint of the appellant is that one of the powerful share-holders who is also a Director and who has control over the majority of the votes among the share-holders, is putting up different individuals for bringing forward schemes for reconstruction with the ultimate object of frustrating the order made by this court directing compulsory liquidation of the company. It is not possible for this Court at this stage to say whether these apprehensions are well founded. But in case the fear is reasonable it will be open to the appellant to apply for a transfer of any application which in his view is filed as a part of the dilatory tactics resorted to by the share-holder who, according to him, is behind the scenes. Such applications would be considered on the merits. We wish to make it clear that the appellant will not in the circumstances be prejudiced or adversely affected by the finding recorded by the court below that it has jurisdiction to deal with applications of this description. If the appellant applies for transfer of such applications, then there will be no reason for him to be afraid of the jurisdiction of the court below being invoked with the object of postponing the liquidation proceedings. So far as the present appeal is concerned, we are not satisfied that it is maintainable. Unfortunately, there is no provision here for applying for directions in a matter of this description. In the absence of such a provision, we can only dismiss this appeal. THEre will, however, be no order for costs. Appeal dismissed.